December 2, 2010

As detailed in this local article, a divided Ohio Supreme Court ruled today ruled that there is "no basis under Ohio law to challenge the lethal injection method of execution." Here's more of the basics of this ruling and a related dismissal of another appeal:

In a 5-2 decision, the court said the General Assembly "has not yet provided an Ohio law cause of action for Ohio courts to process challenges to a lethal-injection protocol."...

In another death penalty case, the court rejected a suit filed by attorneys representing convicted killer Romell Broom that be removed from Death Row because the state tried unsuccessfully to execute him 15 months ago. Without comment, the court unanimously turned down the request by attorneys Timothy F. Sweeney of Cleveland S. Adele Shank of Columbus.

The full opinion for the Court in Scott v. Houk, No. 2010-Ohio-5805 (Dec. 2, 2010) (available here), is only a few paragraphs long. But there are two notable concurrences and dissents that make great reading for folks interested in the relationship between rights and remedies and related federalism issues. Here are excerpts from the order of the Court:

On July 29, 2009, Judge John Adams of the United States District Court, Northern District of Ohio, Eastern Division, certified the following question of state law to this court: “Is there a post-conviction or other forum to litigate the issue of whether Ohio’s lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio law?” The district court recertified the question to us on September 3, 2009, due to an inadvertent failure to provide notice of the original order to the parties. We accepted the question for review. 123 Ohio St.3d 1420, 2009-Ohio-5340, 914 N.E.2d 1062. On September 14, 2010, we heard oral argument from the petitioner. The respondent forfeited his argument by not filing a merit brief....

The Ohio General Assembly has not yet provided an Ohio law cause of action for Ohio courts to process challenges to a lethal-injection protocol, and given the review available on this issue through Section 1983, Title 42, U.S.Code, for injunctive relief against appropriate officers or federal habeas corpus petitions, we need not judicially craft a separate method of review under Ohio law. Accordingly, until the General Assembly explicitly expands state review of death penalty cases by creating a methodology for reviewing Ohio’s lethal-injection protocol, we must answer the certified question as follows: There is no state postconviction relief or other state-law mode of action to litigate the issue of whether a specific lethal-injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law.